Probate and estate administration is a body of laws and concepts covering what happens when someone dies, either with or without a will. Almost all US states have adopted the Uniform Probate Code (UPC) or at least some of its provisions, so it is useful as a resource when providing an overview. The process of estate administration is managed by a personal representative, who may be someone named in a will or appointed by the court. This individual has duties with respect to the decedent, beneficiaries, heirs, and other interested parties.
The role of the estate administrator is an important one, and the powers granted by the court can lead to abuses in the probate process. You may need to defend allegations if you are in this position, but it is important to protect your rights if affected by the misconduct. Consult with a probate and estate administration attorney for personalized details about your situation. A summary of what it takes to remove a personal representative.
Breach of Fiduciary Duty
This is one of the most egregious acts by an estate administrator. If proven, the person could be removed from the role immediately, be forced to reimburse the estate, and other relief as the court sees fit. The personal representative is in the position of a fiduciary, owing a duty to put the interests of the estate ahead of their own and use prudence in managing assets. A breach of fiduciary duty might involve self-dealing in the decedent’s assets, allowing property to go to waste, or misappropriating assets.
Failure to Comply with Court Rules
In addition to strictly following the requirements of the UPC, an estate administrator must adhere to court procedural rules and judge’s orders. An important obligation is filing an inventory that lists all real estate, personal property, debts, and other interests that comprise the decedent’s estate. An associated duty is preparing a periodic accounting so that the parties know how funds are coming in and being expended. A court will treat a refusal to comply seriously.
In addition, if you are a creditor with a verified claim that was approved by the court, it may be grounds to remove the personal representative for refusal to pay.
Disqualification by Law
The UPC and variations of it cover the criteria for who can act as a personal representative, and these rules will lead some individuals to be barred before even being appointed. However, an estate administrator may become disqualified due to some event, such as:
- Incapacity due to an illness, injury, or other medical condition;
- Being arrested and/or convicted for criminal activity, though the rules vary by state and felony versus misdemeanor charges; and,
- The personal representative moved out of state in those jurisdictions that require the person to be a resident.
Discuss Details with a Probate and Estate Administration Lawyer If you have concerns about how a personal representative is handling an estate in which you are an interested party, please contact Francois Williams Legal. We are happy to schedule a consultation to review your situation and determine how to proceed